The United States and the Articles of Confederation: Drifting Toward Anarchy or Inching Toward ...

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by  Eric M. Freedman

Maurice A. Deane School of Law at Hofstra University
Scholarly Commons at Hofstra Law
Hofstra Law Faculty Scholarship
11-1978
The United States and the Articles of
Confederation: Drifting Toward Anarchy or
Inching Toward Commonwealth?
Eric M. Freedman
Maurice A. Deane School of Law at Hofstra University
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Eric M. Freedman,The United States and the Articles of Confederation: Drifting Toward Anarchy or Inching Toward Commonwealth?, 88
Yale L.J.142 (1978)
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The United States and the Articles of
Confederation: Drifting Toward Anarchy or
Inching Toward Commonwealth?*
On June 7, 1776, Richard Henry Lee proposed to the Second Con-
tinental Congress "[t]hat these United Colonies are, and of right ought
to be, free and independent States," and "[t]hat a plan of confederation
be prepared and transmitted to the respective Colonies for their con-
sideration and approbation."' Lee's resolution reflected the linkage
between independence and confederation in the public mind.2 The
result was the Articles of Confederation, drafted in 1776-1777 and fi-
nally ratified on March 1, 1781, which remained in effect until 1789
and represented the first American experiment with a written na-
tional charter.3
The conventional view of this period is that it was dominated by
deep factional conflict concerning the amount of power that should
be vested in the national government.4 The text of the Articles, ac-
cording to this view, represented a victory for the group favoring
minimal national authority,5 and as a result the Articles government
* The author acknowledges with gratitude the assistancc of Professor William E.
Nelson of the Yale Law School in providing critical guidance and granting permission
to make use of unpublished research materials.
1. 5 JOURNALS OF THE CONTINENTAL CONGRESS 425 (W. Ford ed. 1906) [hereinafter cited
without cross-reference as JOURNALS].
2. See NEw JERSEY IN THE AMERICAN REVOLUTION, 1763-1783: A DOCUMENT.ARY HISTORY
402 (L. Gerlach ed. 1975) (issues of independence and confederation were inseparable)
[hereinafter cited as DOCUIENTARY HISTORY]; cf. Jensen, The Articles of Confederation, in
FUNDAMENTAL TESTAMENTS OF TilE AMERICAN RLvoI.UTIoN 62 (Library of Congress Sym-
posium on the American Revolution 1973) (politicians who opposed confederation did
so because they saw it as step toward independence) [hereinafter cited as Jensen,
TESTA ENTS].
3. Other plans of confederation had been proposed during the colonial period. See,
e.g., 6 THE WRITINGS OF BENJAMIN FRANKLIN 420-25 (A. Sinyth ed. 1906); 2 HISTORY OF
THE CELEBRATION OF TIlE ONE HUNDREDTH ANNIVERSARY OF Till: PROMLI.GATION OF TiltE
CONSTITUTION OF TIlE UNIrED STATES 439 app. (H. Carson ed. 1889); J. SCoTT, THE UNITED
STATES OF AMERICA: A STUDY IN INTERNATIONAL ORGANIZATION 471 app. (1920).
4. See, e.g., H. HENDERSON, PARTY POLITICS IN TilE CONrINENTAL CONGRrss (1974); J.
Davis, Sections, Factions, and Political Centralism in the Confederation Period: 1774-1787,
at 381-89 (1972) (unpublished doctoral dissertation for Unihersity of Wisconsin). See
generally M. JENSEN, TIE NLw NATION (1950) [hereinafter cited as M. JrNSEN, NATIONj.
Professor Jensen is the leading authority on the drafting and text of the Articles by
virtue of his book M. JLNSEN, Tile ARTICLES OF CoNI-rDrRATION (1940) [hereinafter cited
as M. JENSEN, ARTICLLS]. This work has been reprinted with new prefaces (1948, 1959,
1970) reflecting the changes in the author's thinking over the ears; the text, however,
remains unaltered.
5. See M. JETNSEN, ARTICLES, supra note 4, at 11-12.
Articles of Confederation
was barely functional.6 Its inability to handle crises such as Shays'
Rebellion stimulated a centralist reaction that led to the drafting
of the Constitution in 1787T and the establishment of a stronger na-
tional government.8
This Note disputes the accepted view of the Articles Period and
interprets the years 1777-1789 as ones in which the national govern-
ment gained and exercised increasing powers. The legal and political
institutions created during this period were the basis for the Consti-
tution's national federalism, a political structure characterized by
state deference to national power in certain major policy areas and
the common recognition of a national citizenship given reality by
comity among the states.9 Examination of the drafting history and
actual text of the Articles suggests that the document was the result
of a drive toward union, not an obsession with decentralization. In
fact, the national government grew in power and institutional strength
from 1777 to 1789, and the theoretical and institutional structures of
the government of the early Constitution Period owed a very sub-
stantial debt to those of the Articles Period.
I. Formal Federalism: The Drafting and Text of the Articles
The leading historian of the Articles of Confederation asserts that
their adoption represented a victory for "radicals," who wanted a
weak central government, over "conservatives," who favored greater
6. See p. 149 & note 48 infra (citing sources).
7. See M. STARKEY, A LITTLE REBELLION 242 (1955) (but for Shays' Rebellion, Fed-
eral Constitution might not have come to pass); R. TAYLOR, WESTERN MASSACHUSETTS
IN THE REVOLUTION 103-77 (1954); id. at 168 ("[C]ertainly the upheaval in Massachusetts
and the fear that disorder would spread intensified the demand for a stronger central
government.")
8. The classic expression of this idea remains J. FisKE, THE CRITICAL PERIOD OF
ANJERICAN HISTORY 1783-1789 (illustrated ed. 1897). See, e.g., id. at 177-78 ("The events
of 1786 impressed upon men's minds more forcibly than ever the wretched and disorderly
condition of the country, and went far toward calling into existence the needful popular
sentiment in favour of an overruling central government.")
9. The national federalism that began to emerge during the Articles Period thus
meant that the states had surrendered certain aspects of their sovereignty, and that the
national government would deal directly with individuals. See note 151 infra. This
Note does not suggest that the Constitution's structure of government was created by
the Articles or that today's structure of government appeared in 1789. Rather, it seeks
to point out the significant ways in which the government of the early Constitutional
Period rested on that of the Articles Period, just as the government of today rests on
that of the early Constitutional Period. Neither the Articles nor the Constitution, by
themselves, created strong centralized structurcs. Both, for instance, contained broad clauses
reserving all powers not delegated to the national government to the states. See U.S.
CoxsT. aniend. X; ARTICIES cF CO\FEDERATION art. II, reprinted in 9 JOURNALS at 908
[hereinafter cited as ARTICLES with page citation to 9 JOURNALS].
The Yale Law Journal Vol. 88: 142, 1978
national power for the protection of property rights.10 This conven-
tional view is undermined by a critical examination of the drafting
process and the textual provisions of the Articles. The members of
Congress displayed a consistent willingness to compromise or surren-
der elements of state sovereignty in recognition of the overriding need
for full national authority in certain areas and for interstate coopera-
tion and comity. The resulting Articles clearly express these prin-
ciples of national authority and national citizenship.
A. Drafting the Articles
While the dominance of the "radicals" is conventionally said to
be shown by their emasculation of "conservative" John Dickinson's
first draft and production of a final draft that left few powers to
the central government," the successive drafts of the Articles12 do
not show such a steady movement from a strong to a weak central
government. For instance, between the first and second drafts, al-
terations in limiting language served to strengthen the supremacy
clause,13 enhance central authority over the general budget,14 and
10. This thesis is developed at length in M. JENSEN, ARTICLES, supra note 4. For a
clear definition of Jensen's use of the terms "radical" and "conservative," see Jensen,
The Idea of a National Government During the American Revolution, 58 POLITICAL
Sci. Q. 356, 360 n.7 (1943). There is a substantial and growing body of literature that
casts doubt on the validity of Jensen's dichotomy. See, e.g., Weir, "The Harmony We
Were Famous For": An Interpretation of Pre-Revolutionary South Carolina Politics, 26
WM. & MARY Q. 473 (3d ser. 1969) (study inconsistent with Jensen model); Rakove, Book
Review, 6 J. INTERDISCIPLINARY HIsT. 744, 746 (1976) (reviewing H. HENDERSON, supra
note 4, and discussing flaws with his approach). See generally Greene, Changing In-
terpretations of Early American Politics, in THE REINTERPRETATION OF EARLY AMERICAN
HISTORY 151 (R. Billington ed. 1966).
11. See M. JENSEN, ARTICLES, supra note 4, at 130 (theory of Dickinson draft was to
make Congress supreme authority; final draft was pact among sovereign states that dele-
gated certain powers and retained all others).
12. The first draft of the Articles [hereinafter cited as ARTICLES (draft 1)] was re-
ported to the Continental Congress on July 12, 1776, by the committee that had been
appointed under Lee's resolution, see p. 142 supra, to prepare a plan of confederation. 5
JOURNALS at 546. The manuscript of this first draft is in the handwriting of John
Dickinson of Pennsylvania, is believed to have been largely drafted by him, and is
commonly known as the "Dickinson draft" of the Articles.
The first draft was revised by the Committee of the Whole, and a second draft [here-
inafter cited as ARTICLES (draft 2)] was ordered printed on August 20, 1776. 5 JOURNALS at
689. Further congressional debates led to the printing of a third draft [hereinafter cited
as ARTICLES (draft 3)]. The final version of the Articles was essentially the same as the
third draft, with "sundry small amendments made in the diction, without altering the
sense." 9 JOURNALS at 907.
13. Compare ARTICLES (draft 1) art. XII, 5 JOURNALS at 678 ("Every Colony shall abide
by the Determinations of the United States assembled, concerning the Services performed
and Losses or Expences incurred by every Colony for the common Defence or general
Welfare. ... ) with ARTICLES (draft 2) art. X, 5 JOURNALS at 678 ("Every State shall
abide by the determinations of the United States in Congress Assembled, on all ques-
tions which by this Confederation are submitted to them.")
14. The first draft read: "The United States assembled shall have Authority for the
Defence and Welfare of the United Colonies and every of them, to agree upon and fix
Articles of Confederation
increase national military powers.15 Between the second and third
drafts of the Articles, further centralizing changes were made, in-
cluding the addition of an article granting "the free inhabitants
of each of these states . . . all the privileges and immunities of free
citizens in the several states,"'6 requiring that "[f]ull faith and credit
shall be given in each of these states to the records ... of every other
state,"' 7 and mandating interstate extradition. s At the same time,
the framers further strengthened the budget authority,19 and added
a provision granting congressional immunity.20 Although there were
also important changes that weakened national authority,2' most no-
tably the strengthening of the article recognizing the reserved powers
of the states,22 there was no overall movement in that direction.23
The drafting process reveals that Congress shared the country's desire
for confederation.24 The members knew that union could only be
tile necessary Sums and Expences . . . ." ARTICLES (draft 1) art. XVIII, 5 JOURNALS at
683 (emphasis supplied). The second draft deleted the italicized language, and with it
the burdensome requirement that each expenditure be demonstrably for the benefit of
each state. See ARTICLES (draft 2) art. XIV, 5 JOURNALS at 683.
15. Compare ARTICLES (draft 1) art. XVIII, 5 JOURNALS at 683 (authority to raise naval
forces from states and issue regulations for them) with ARTICLES (draft 2) art. XIV, 5
JOURNALS at 682, 684 (authority to build and equip navy and direct its operations).
16. ARTICLES (draft 3) art. IN', 9 JOURNALS at 908-09. The first draft contained a weaker
form of this provision, ARTICLES (draft 1) arts. VI, VII, 5 JOURNALS at 676, dropped from
draft 2, that required comity among the states in matters of migration and ;Trade, Nav-
igation, and Commerce," but in all other cases restricted citizens of other states to
the rights they already enjoyed.
17. ARTICLES (draft 3) art. IN, 9 JOURNALS at 909. The judicial implementation of this
clause is discussed at pp. 159-60 infra.
18. ARTICLES (draft 3) art. IV, 9 JOURNALS at 909; see p. 162 & note 138 infra.
19. Congress, which had previously been authorized only *'to agree upon and fix
the necessary sums and expences," ARTICLES (draft 2) art. XIV, 5 JOURNALS at 683, was given
the new power -to appropriate and apply" the revenue, ARTICLES (draft 3) art. XIV, 9
JOURNALS at 920.
20. ARTICLES (draft 3) art. V, 9 JOURNALS at 910; see p. 161 & note 135 infra.
21. For example, in the first draft the states "unite[d] themselves so as never to be
divided by any Act whatever," and entered into a league of friendship, ARTICLES (draft 1)
art. II, 5 JOURNALS at 674. In the succeeding draft the nature of the union was recharac-
terized to retain only the league of friendship, see ARTICLES (draft 2) art. II, 5 JOURNALS
at 674.
22. See M. JENSEN, ARTICLES, supra note 4, at 175 (change concerned "basic constitu-
tional issue of the Revolution"); cf. Letter from Thomas Burke to the Governor of North
Carolina (April 29, 1777), r-clrinted in 2 LETTERS OF MEMBFRS OF TIE CONTINENTAL CON-
GRESS 345-46 (E. Burnett ed. 1923) (author of change notes that it caused little controversy
among members) [hereinafter cited as LETTERS]. Compare ARTICLES (draft 2) art. III, 5
JOURNALS at 675 wilh ARTICLES (draft 3) art. II, 9 JOURN'.LS at 908.
23. See1p . 166 infra (Appendix summariLing changes made during drafting of Articles).
24. See, e.g., Jefferson, Notes of Debates in the Continlental Congress, in 6 JOURNALL
at 1102 (Mr. Chase observed that "our importance, our interests, our peace required
that we should colfedera te"); J. WNrI ItsS'oox, Speech in Congress (July 30, 1776), in 9
THE WORKS OF JOHN WITHERSPOON, D.D. 135 (Edinburgh 1805) ("The absolute necessity
of union ... i.; felt and confessed by every one of us, without exception."); Letter from
Corn[elius] Harnett to Governor Caswcll (Mar. 20, 1778), reprinted in 13 THE STATE
RLcoRns Or NoRxT CAROLINA 386 (W. Clark ed. 1896) (every member of Congress but one
The Yale Law Journal Vol. 88: 142, 1978
attained if the final version of the Articles proved acceptable to all
thirteen state legislatures. The most important objectives of the drafts-
men, therefore, were to overcome centrifugal forces25 and achieve the
greatest possible degree of support for each position taken.
For example, on the volatile issue of the basis of representation in
the national legislature, Thomas Jefferson accurately predicted that
"the good whigs" would "cede their opinions for the sake of the
Union.120 Although the small states, which favored a one-state, one-
vote plan,27 held a clear majority and could have enacted their wishes
at any time,28 they engaged in lengthy discussions and numerous at-
tempts at compromise2 9 with the larger states, which favored voting
..seems to wish for a Confederacy") [hereinafter cited as REcoRDs]; Letter from Edward
Rutledge to Robert R. Livingston (Oct. 2, 1776), reprinted in LETTERS, supra note 22,
at 113.
For views of religious leaders, see, e.g., E. HUNTINGTON. THE HAPPY EFFECTS OF UNION
AND THE FATAL TENDENCY OF DIVISIONs 11, 12, 13, 17, 20 (Hartford 1776); R. Ross, A
SERMON IN WHICH THE UNION OF THE COLONIES IS CONSIDERED AND RECOMMENDED; AND
THE BAD CONSEQUENCES OF DIVISION ARE REPRESENTED 5, 6-7 (New York 1776). For views
of private persons, see, e.g., T. PAINE, COMMON SENSE 30, 56, 61, 71-72 (Philadelphia
1776) (favoring union as soon as possible because it would be more difficult to achieve
later); Letter from William Hooper to Robert Morris (Feb. 1, 1777), reprinted in COL-
LECTIONS OF THE NEW-YORK HISTORICAL SOCIETY FOR TIlE YEAR 1878, at 418 (1879) [here-
inafter cited as COLLECTIONS 1878].
In addition to their shared desire for union, the members' agreement on such other
matters as the importance of state sovereignty and the need for "virtue" in public
officers, both seen as important checks on the corrupting influence of political power
on officeholders, smoothed the road to compromise at many points. See, e.g., A. MATHER,
THE CHARACTER OF A WELL ACCOMPLISHED RULER DSCRIB'D (New Haven 1776). See
generally THE ANTIFEDERALISTS xxv-xxx, xcviii-xcix (C. Kenyon ed. 1966) (discussing shared
beliefs of political opponents).
25. Concerning the divisions caused by parochialism, see, e.g., H. HENDERSON, suPra
note 4, at 53-54, 60, 113-20 (discussing numerous controversies over the appointments of
specific generals to the Continental Army); Letter from William Duer to Robert R.
Livingston (May 28, 1777), reprinted in LETTERS, supra note 22, at 231. Yet these disputes
also led to congressional assumption of a conciliating role, exemplified by the resolution:
"That a letter be written to General Schuyler, requesting him to recommend, in the
strongest terms, harmony between the officers and troops of the different states; [and]
to discountenance and suppress all provincial reflections and ungenerous jealousies of
every kind .... " 5 JOURNALS at 591.
26. Letter from Thomas Jefferson to John Adams (May 16, 1777), reprinted in 2
THE PAPERS OF THOMAS JEFFERSON 19 (J. Boyd ed. 1950).
27. On the positions in the representation debate, see generally Adams, Notes of
Debates in the Continental Congress, in 6 JOURNALS at 1081; Jefferson, supra note 24,
at 1104-06; Letter from William Williams to the Governor of Connecticut (July 5,
1777), reprinted in LETrERS, snpra note 22, at 399-400.
28. The delegates to the first Continental Congress, after a debate similar to that
in the second, had decided to give each state one vote at least on a temporary basis.
The stated ground for this decision was a lack of adequate population data. The
result was to do what a majority of the delegates wanted without giving offense to
the others. See M. JENSEN, ARTICLFS, supra note 4, at 57-59.
29. For instance, feeling "that the smaller states should be seculed in all questions
concerning life or liberty, and the greater ones in all respecting property," Samuel
Articles of Confederation
according to population. Eventually, a spirit of compromise prevailed:
the delegates achieved virtual unanimity30 as the larger states, seeing
the need to accommodate the smaller ones,31 supported the one-state,
one-vote plan.
The process of compromise that marked the drafting debates is
clearly visible in the surviving rollcall votes on various other pro-
visions32 and in the congressional appeal to the states for ratification
of the Articles.33 This process was successful in gaining the support
of the states. Although nine states formally requested modifications
in the Articles,34 eleven ratified them within a year of their promul-
gation, and all thirteen states ultimately did so.35 A typical response
came from the Delaware Council, which felt that the terms of the
Articles were "in divers respects unequal and disadvantageous to this
state," but ordered its delegates to ratify them because of "the present
necessity of acceding to the Confederacy proposed."36
B. The Text of the Articles
What is most remarkable about the drafting and ratification of
the Articles is that the political community reached broad agreement
on a wide variety of provisions that formed the bedrock of a new
Chase of Maryland "proposed that in votes relating to money, the voice of each colony
should be proportioned to the number of its inhabitants" while each state should have
only one vote in all other matters. Jefferson, supra note 24, at 1102. Roger Sherman
of Connecticut and Thomas Jefferson both proposed plans under which either the
acquiescence or the approval of a majority of both the states and the national popu-
lation would be required in certain instances. See Adams, supra note 27, at 1081;
Letter from Thomas Jefferson to John Adams, supra note 26, at 19.
30. In the four recorded rollcall votes on representation, the majority position
carried by a total of 40 to 5, see 9 JOURNALs at 779-82. The motion to grant each state
one vote carried 10 to 1, id.
31. See E. BURNETr, THE CONTINENTAL CONGRESS 249 (1941).
32. The records of the sixteen rolicall votes taken on the Articles are to be found
in 9 JOURNALS at 779-82, 801, 803-04, 807-08, 835, 843, 849, 850, 879, 896, 934, 935. Their
most salient characteristic is their consistent one-sidedness; aggregating the results of
all these votes, the majority positions carried by a margin of 125-30. Rollcalls normally
indicate questions about which there is some disagreement. Large portions of the Articles
were approved without dissent by voice votes. See, e.g., id. at 826, 833-34, 848.
33. See 9 JOURNALS at 932-34 (Articles as proposed are compromise, reflecting "dis-
position to conciliate" in order to secure plan affording "tolerable prospect of a general
ratification," and should be examined by legislators in liberal spirit in view of "absolute
necessity of uniting").
34. See Harmon, The Proposed Amendments to the Articles of Confederation (pts. 1-2),
24 S. ATLANTIC Q. 298, 411 (1925).
35. See 1 Tim DOCUMENTARY HISTORY OF THE R,%TfIcATION OF THE CONSTITUTION 96-
137 (M. Jensen ed. 1976) (giving dates and texts of state requests for modifications and
state ratifications) [hereinafter cited as RATIFICATION].
36. Delaware Council Resolution of January 28, 1779, reprinted in id. at 131.
147
The Yale Law Journal Vol. 88: 142, 1978
national federalism.37 The Articles contained significant grants of
power and authority to the national government.
The first stone in the federal structure under the Articles was a
supremacy clause: "Every State shall abide by the determinations of
the United States, in Congress assembled, on all questions which,
by this confederation, are submitted to them. And the articles of this
confederation shall be inviolably observed by every State ...., ,38 This
clause was reinforced by a series of prohibitions designed to prevent
the states from interfering with the plenary authority granted Con-
gress over military, diplomatic, and commercial affairs.39
Furthermore, the Articles granted significant financial powers to
the national government. Congress assumed the debts previously in-
curred for national purposes,40 and received authority to defray all
expenses "that shall be incurred for the common defence or general
welfare."141 To implement this power, the national government was
given the exclusive rights to regulate the value of both national and
state coinage, "to appropriate and apply the [necessary sums of money]
for defraying the public expences," and "to borrow money or emit
bills on the credit of the united states."42 The Articles also created
the basis for a national judicial system.43 They empowered the gov-
37. See G. WooD, THE CREATION OF THE AMERICAN REPUBLIC 1776-1787, at 359 (1969)
("What is truly remarkable about the Confederation is the degree of union that was
achieved.") Although recent writers occasionally have taken this view, see, e.g., Young,
The Articles of Confederation and Perpetual Union, 63 A.B.A.J. 1572 (1977), the Articles
are conventionally regarded as having created "a confederation so loose that it had
no power," Wright, The Relation of Law in America to Socio-Economic Change, 28
ARK. L. REv. 440, 450 (1975); see, e.g., I J. HARE, AMERICAN CONSTITUTIONAL LAW 16-18
(1889); 1 A. DE TOCQUEVILLE, DEMtocRAcY IN AmERICA 116-18 (P. Bradley ed. 1945). In set-
ting forth the concept of a national federalism based on deference to national power in
certain areas and recognition of a common citizenship, this Note suggests not only that
the Confederation government did have power, but also that the existence and exercise of
that power had important implications for the future of the country's development.
38. ARTICLES art. XIII, 9 JOURNALS at 925; cf. U.S. CONSr. art. VI, cl.2 (supremacy
clause). The supremacy clause of the Articles was fully as effective in requiring state
judges to follow national policy in those matters committed to national control as
is the supremacy clause of the Constitution. See pp. 153-54 & note 77 infra.
39. See pp. 150-54 infra. The prohibitions on state action are to be found in ARTICLES
art. VI, 9 JOURNALS at 911-13.
40. ARTICLES art. XII, 9 JOURNALS at 924; see J. FISKE, supra note 8, at 101 ("[B]y
assuming all debts contracted by Congress prior to the adoption of the articles, and
solemnly pledging the public faith for their payment, it was implicitly declared that
the sovereignty here accorded to Congress was substantially the same as that which it
had asserted and exercised ever since the severing of the connection with England.")
41. ARTICLES art. VII, 9 JOURNALS at 913; see p. 161 & note 132 infra.
42. ARTICLES art. IX, 9 JOURNALS at 919-20; see p. 154 infra.
43. For a general discussion of this system, see Sergeant, A Brief Sketch of the Na-
tional Judiciary Powers Exercised in the United States, From the First Settlement of
the Colonies to the Time of the Adoption of the Present Federal Constitution, in P.
Du PONCEAU, A DISSERTATION ON THE NATURE AND EXTENT OF TIlE JURISDICTION OF TIlE
COURTS OF THE UNITED STATES 135-58 (Philadelphia 1824).
Articles of Confederation
ernment to set up "courts for the trial of piracies and felonies com-
mitted on the high seas," and also to establish courts with appellate
jurisdiction over all prize cases.44
In addition to reposing important governmental powers at the na-
tional level, the Articles sought to create a system of interstate co-
operation and comity. The two most important provisions in this
regard were the privileges-and-immunities and the full-faith-and-credit
clauses,45 provisions that created a "universal intercitizenship" that
"gave reality to the nascent and feeble Union."46 Congress, moreover,
was made "the last resort on appeal in all disputes . . . between two
or more states, concerning boundary, jurisdiction or any other cause
47
whatever."
II. Institutional Federalism: Substantive Powers and the
Development of Government Machinery, 1777-1789
The conventional view is that American political history from the
Declaration of Independence to the Constitution was dominated by
"the complete inability of the government set up by the Articles
of Confederation to function."" This view ignores effective exercises
of national power that took place during this period and the evo-
lution of institutions extending beyond the text of the Articles. Con-
gress and the state judiciaries often read the Articles broadly and
expansively in response to the practical needs of the country. The
institutions created by Congress exercised wide powers that furthered
national unity, and the states acquiesced.
A. National Powers and Their Expansion
Even before actual fighting with the British began, the Continental
Congresses assumed broad military and administrative powers49 with-
44. ARTICLES art. IX, 9 JOURNALS at 916. For a discussion of how Congress used these
powers, see pp. 158-59 & notes 114-16 infra.
45. See p. 145 supra & pp. 159-60 infra; THE FEDERALIST No. 42 (. Madison) (privileges-
and-immunities clause); Nadelmann, Full Faith and Credit to Judgments and Public Acts,
56 MIcH. L. REV. 33, 33-53 (1957) (full-faith-and-credit clause).
46. J. FiSKE, supra note 8, at 97.
47. ARTICLES art, IX, 9 JOURNALS at 916; see pp. 155-56 infra.
48. C. THACH, JR., THE CREATION OF THE PRESIDENCY, 1775-1789: A STUDY IN Cox-
STITUTIONAL HISTORY 16 (1922); see Miller, An Inquiry into the Relevance of the In-
tentions of the Founding Fathers, With Special Emphasis Upon the Doctrine of Separation
of Powers, 27 ARK. L. REV. 583, 589 (1973); O'Brien, The Executive and the Separation
Principle at the Constitutional Convention, 55 MNDH. isr. MAGAZINE 201, 205 (1960).
49. See G. WooD, supra note 37, at 355.
The Yale Law Journal Vol. 88: 142, 1978
out express legal authority,50 and afterwards these developments con-
tinued.51 Congress construed its authority broadly within the area
of its delegated powers, especially in the war, foreign affairs, and fis-
cal fields, and continued to assume powers that had not been dele-
gated. According to Madison, a catalogue of congressional actions that
were "violations of their chartered authorities" under the Articles
"would not a little surprize those who have paid no attention to
the subject."52 Informed contemporaries5a and the states themselves
recognized this developmental process, and most supported it because
they agreed upon the desirability of a national confederation and
the practical necessity for its expansive assertions of power.54
1. The War Power
The Revolutionary War was the most important basis for the as-
sertion of broad congressional authority. In prosecuting the war, the
national government established practices and institutions that con-
tinued long after the fighting had stopped. Congress took those ac-
tions it deemed necessary, notwithstanding its lack of formal power,
and insisted that its judgment on military matters should be final.-
For example, the congressional decision in 1781 to authorize the
50. See Jensen, TESTAMENTS, supra note 2, at 61-62; cf. Penhallow v. 1)oane's Adm'vs.
3 U.S. (3 Dali.) 54, 80-82 (1795) (league existed among states prior to Articles and Con-
gress exercised extensive revolutionary powers on its behalf).
51. See 2 I. BRANT, JAMES MADSO\ 129 (1918) (listing wartime actions showing ex-
pansive congressional interpretation of general welfare).
52. THE FEDERAI.IST No. 42 (J.M adison) 280 (J. Cooke ed. 1961).
53. See Letter from Thomas Burke to Governor Caswell (Mar. 11, 1777), reprinted ill
11 RECORDS, supra note 24, at 417-18, 421 Ihcreinafter cited as Burke-Caswell Letter];
Letter from Thonmas Paine to Robert Morris (Nov. 20, 1782). reprinted ill COLLAtIrO.,S
1878, supra note 2-, at 486.
54. See, e.g., Rosenberg, William Palerson: New Jersey's Nalion-Maher, 85 N.J. Hisr.
7, 23-24 (1967) (Paterson and other believers in states' rights still saw need for stlong
confederation); Commentary by "A True Patriot," New JeTsey Gazette, April 11, 1781,
rePrinted in DOCUMLNTARY HIsTORY, supra note 2, at 419 (central gosernuent needs
greater authority); Letter from Abraham Baldwin to Charles Thomson (Feb. It. 1786),
reprinted in COLLECTIOxS 1878, supra note 24, at 202-04 (Middle Atlantic and Southern
states are fasorably inclined toward increasing strength of union).
The state of Massachusetts prosecuted in its own name sedition ald treason against
the United States, granted agents of tie central goler'llellt inunllit% from suit oil
official contracts, and shaped its rules of law to effectuate the national power to issue
currency. See Nelson, The American Resolution and the l.nergence of Modern )oc-
trines of Federalism and Conflict of Laws 18 nn.67 & 68, 20 n.75 (1969) (unpublished
essay on file with Yale Law Journal) (citing cases); cf. Respublica %. Sweers, 1 U.S. (I
Dall.) 41 (Pa. 1779), discussed in note 119 infra (state plosecutioll insols ing forging of
receipts with intent to defraud United States).
55. See Burke-Caswell Letter, sujpra note 53, at 421 (-1 am often suggesting to Con-
gress that tile Civil Power of the States is the best instrument for calling forth their
proportion of exertions ...but they hear with reluctance any thing that looks like
the interposition of such a power in military affairs .... ")
150